EMPLOYMENT
AGREEMENT, dated as of February 7, 2008, between Harland
Clarke Holdings Corp., a Delaware corporation (the “
Company ”), and Daniel Singleton (the “
Executive ”).
WHEREAS,
on May 2, 2007, Harland Clarke Corp. (“Harland
Clarke”), the Company and the Executive entered into a new
Employment Agreement (the “ Existing Employment
Agreement ”); and
WHEREAS,
the Company and the Executive wish to modify the terms of
employment set forth in the Existing Employment
Agreement.
Accordingly,
the Company and the Executive hereby agree as follows:
1.
Employment, Duties and Acceptance .
1.1
Employment, Duties . The Company hereby employs the
Executive for the Term (as defined in Section 2.1), to render
exclusive and full-time services to the Company as Executive Vice
President of the “Harland Clarke Business”, or in such
other executive position as may be mutually agreed upon by the
Company and the Executive, and to perform such other duties
consistent with such position as may be assigned to the Executive
by the Board of Directors of Harland Clarke Holdings Corp. (the
“ Board ”). During the Term, the Executive shall
report solely to the CEO (or his designee). For purposes of this
Agreement, the term “Harland Clarke Business” shall
mean the business of the provision of checks and related products,
direct marketing and contract center services to financial and
commercial institutions and individuals, and any future businesses
from time to time included in or added to such
businesses.
1.2
Acceptance . The Executive hereby accepts such employment
and agrees to render the services described above. During the Term,
the Executive agrees to serve the Company faithfully and to the
best of the Executive’s ability, to devote the
Executive’s entire business time, energy and skill to such
employment, and to use the Executive’s best efforts, skill
and ability to promote the Company’s interests. The Executive
further agrees to accept election, and to serve during all or any
part of the Term, as an officer or director of the Company and of
any subsidiary or affiliate of the Company, without any
compensation therefor other than that specified in this Agreement,
if elected to any such position by the shareholders or by the Board
or of any subsidiary or affiliate, as the case may be.
1.3
Location . The duties to be performed by the Executive
hereunder shall be performed primarily at the offices of the
Company in Atlanta, Georgia, subject to reasonable travel
requirements on behalf of the Company.
2.
Term of Employment; Certain Post-Term Benefits .
2.1
The Term . This Agreement and the term of the
Executive’s employment under this Agreement (the “
Term ”) shall become effective as of January 1,
2008 (the “ Effective Date ”) and will continue
until December 31, 2009 (the “ Termination Date
”), subject to earlier termination pursuant to
Section 4.
2.2
End-of-Term Provisions . Prior to the end of the Term, the
Company and the Executive shall meet to discuss whether the Term
should be extended. The Company shall have the right at any time,
however, to give written notice of non-renewal of the Term. In the
event of non-renewal of the Term by the Company and the
Executive’s employment is terminated after the end of the
Term, other than for Cause (as defined below), or Disability (as
defined below) following such notice of non-renewal, then such
termination shall be treated as a termination without Cause and the
Restricted Period (as defined below) shall be reduced to a period
of nine months post termination of employment (the “
Reduced Restricted Period ”). During such Restricted
Period, the Executive shall receive 50% of the payments set forth
in Sections 4.4(i) and 4.4(ii), subject to Executive’s
signing and not revoking the release of claims as set forth in
Section 4.6. For the avoidance of doubt, if the Company is
willing to extend the Term and Executive does not agree to extend
the Term, then upon such termination of employment at the end of
the Term, the Executive shall be bound by the restrictive covenants
set forth in Section 5 below, the Restricted Period shall not
be reduced and Executive shall not be entitled to receive any
severance benefits with respect to such termination.
Notwithstanding the foregoing, the terms of this Section 2.2
will not impact any payments or other benefits to which the
Executive would then be entitled under normal Company policies or
the LTIP (as defined below) pursuant to the terms
thereof.
3.
Compensation; Benefits .
3.1
Salary . As compensation for all services to be rendered
pursuant to this Agreement, the Company agrees to pay the Executive
a base salary, payable in accordance with the Company’s
normal payroll practices, at the annual rate of not less than
$500,000 (effective January 1, 2008) less such deductions or
amounts to be withheld as required by applicable law and
regulations (the “ Base Salary ”). In the event
that the Company, in its sole discretion, from time to time
determines to increase the Base Salary, such increased amount
shall, from and after the effective date of the increase,
constitute “Base Salary” for purposes of this
Agreement.
3.2
Incentive Compensation.
3.2.1
Annual Bonus . Commencing with the 2008 fiscal year, the
Executive will be eligible to receive a bonus with respect to 2008
and each later fiscal year ending during the Term computed in
accordance with the provisions hereafter. If, with respect to any
such fiscal year, the Harland Clarke Business achieves
“Consolidated EBITDA” (as defined below) of at least
the percentage set forth in the table below of its business plan
for such fiscal year, such bonus shall be the percentage set forth
in the table below of Base Salary with respect
to the fiscal
year for which the bonus (any such bonus, an “ Annual
Bonus ”) was earned:
|
|
|
|
|
Percentage of
Consolidated
|
|
Percentage of Base
|
|
EBITDA in Business
Plan
|
|
Salary
|
|
|
|
Nil
|
|
|
|
90
|
|
|
|
95
|
|
|
|
100
|
|
|
|
105.56
|
|
|
|
111.11
|
|
|
|
116.67
|
|
|
|
122.22
|
|
|
|
127.78
|
|
|
|
133.33
|
|
|
|
138.89
|
|
|
|
144.44
|
|
|
|
150
|
An Annual Bonus if
earned in accordance with this Agreement shall be paid no later
than the fifteenth day of the third month next following the year
with respect to which such bonus was earned, provided that, except
as otherwise specifically provided in this Agreement (including,
without limitation, Section 4.4), as a condition precedent to
any bonus entitlement the Executive must remain in employment with
the Company at the time that the Annual Bonus is paid.
Notwithstanding the foregoing, to the extent that Section 162(m) of
the Internal Revenue Code of 1986, as amended (the “
Code ”), may be applicable, such Annual Bonus shall be
subject to, and contingent upon, such shareholder approval as is
necessary to cause the Annual Bonus to qualify as
“performance-based compensation” under Section 162(m)
of the Code and the regulations promulgated thereunder as well as
approval of this Section 3.2.1 by the MFW Compensation
Committee and any other required committees.
For the purposes
of this Agreement, “ Consolidated EBITDA ” means
for any fiscal year of the Company, consolidated operating income
for such fiscal year of the Harland Clarke Business plus, without
duplication, the sum of (i) depreciation and amortization
expense (excluding amounts of prepaid incentives under customer
contracts), (ii) any extraordinary non-cash expenses or
losses, (iii) any costs and expenses incurred in connection
with the Transaction, (iv) allocation of fees charged by MFW
or a subsidiary to the Company relating to the operation of the
Harland Clarke Business and (v) all restructuring costs (as
defined under U.S. generally accepted accounting principles), in
the case of clauses (i) through (v) above, solely with
respect to the Harland Clarke Business, and minus (x) to the
extent included in the statement of such consolidated net income
for such period, the sum of any extraordinary or non-recurring
income or gains (including, whether or not otherwise includable as
a separate item in the statement of such consolidated operating
income for such period, gains on the sales of assets outside of the
ordinary course of business), and (y) any cash payments made
during such period
in respect of
items described in clause (ii) above subsequent to the fiscal
quarter in which the relevant non-cash expenses or losses were
reflected as a charge in the statement of consolidated operating
income, in the case of clauses (x) and (y) above, solely
with respect to the Harland Clarke Business, all as determined on a
consolidated basis, all of the foregoing to be determined by the
Board or the MFW Compensation Committee, as applicable. For the
purposes of determining compensation milestones for any fiscal
year, Consolidated EBITDA will be adjusted by the Board or the MFW
Compensation Committee, as applicable, as appropriate for material
acquisitions or dispositions of any business or assets of or by the
Harland Clarke Business or its subsidiaries for such fiscal year
and thereafter.
3.2.2
New Long Term Incentive Plan . During the Term, the
Executive shall participate in the M&F Worldwide Corp. 2008
Long Term Incentive Plan Award Agreement for Participating
Executives of the “Harland Clarke business” (the
“LTIP”). The specific terms of such award shall be set
forth in an Award Agreement entered into with the Executive on or
about the date hereof. If the Term is extended, the Executive shall
participate in a new Long Term Incentive Plan that shall commence
after the LTIP ends. Notwithstanding the foregoing, to the extent
that Section 162(m) of the Code may be applicable, the LTIP (and
any subsequent Long Term Incentive Plan) shall be subject to, and
contingent upon, such shareholder approval as is necessary to cause
the LTIP to qualify as “performance-based compensation”
under Section 162(m) of the Code and the regulations promulgated
thereunder
3.2.3
Existing Long Term Incentive Plan . The Executive’s
existing Long Term Incentive Plan Award pursuant to the MFW 2005
Long Term Incentive Plan (the “ Prior LTIP ”)
shall be cancelled in exchange for the cash payments in the next
sentence. For fiscal year 2006, Executive shall receive a cash
payment of $350,829 (based on reported results for 2006) and for
fiscal year 2007 Executive shall receive a cash payment in an
amount approved by the MFW Compensation Committee (collectively,
the “ Prior LTIP Payments ”). The Prior LTIP
Payments shall be paid to Executive as soon as practicable in order
to avoid application of an additional or accelerated tax under
Section 409A of the Code (as more fully set forth in
Section 4.7 herein). For the avoidance of doubt, after
Executive receives the Prior Plan Payments, Executive shall have no
further right to any payment in respect of his Award under the
Prior LTIP and the Prior LTIP shall be cancelled, effective not
later than December 31, 2007.
3.3
Business Expenses . The Company shall pay or reimburse the
Executive for all reasonable expenses actually incurred or paid by
the Executive during the Term in the performance of the
Executive’s services under this Agreement, upon presentation
of expense statements or vouchers or such other supporting
information as the Company customarily may require of its officers
provided , however , that the maximum amount
available for such expenses during any period may be fixed in
advance by the Board.
3.4
Vacation . During the Term, the Executive shall be entitled
to a vacation period or periods of five (5) weeks during any
fiscal year taken in accordance with the vacation policy of the
Company during each year of the Term. Vacation time not used by the
end of a year shall be forfeited.
3.5
Fringe Benefits . During the Term, the Executive shall be
entitled to all benefits for which the Executive shall be eligible
under any qualified pension plan, 401(k) plan, group insurance or
other so-called “fringe” benefit plan which the Company
provides to its executive employees generally, which benefits may
be subject to change to reflect the objectives and requirements of
the Transaction.
4.1
Death . If the Executive dies during the Term, the Term
shall terminate forthwith upon the Executive’s death. The
Company shall pay to the Executive’s estate: (i) any
Base Salary earned but not paid; (ii) a pro rated Annual Bonus
based on the number of days of the fiscal year worked by the
Executive; (iii) amounts payable under the LTIP in accordance
with the terms thereof and (iv) Annual Bonus for the year
prior to the year in which the Executive dies if at the time of
death the Executive has earned an Annual Bonus payment for such
prior year and has not yet been paid such Annual Bonus. The
Executive shall have no further rights to any compensation
(including any Base Salary or Annual Bonus) or any other benefits
under this Agreement, except to the extent already earned and
vested as of the day immediately prior to his death, or as earned,
vested, or accrued by virtue of his death.
4.2
Disability . If, during the Term the Executive is unable to
perform his duties hereunder due to a physical or mental incapacity
for a period of 6 months within any 12 month period
(hereinafter a “ Disability ”), the Company
shall have the right at any time thereafter to terminate the Term
upon sending written notice of termination to the Executive. If the
Company elects to terminate the Term by reason of Disability, the
Company shall pay to the Executive promptly after the notice of
termination: (i) any Base Salary earned but not paid,
(ii) a pro rated Annual Bonus based on the number of days of
the fiscal year worked by the Executive until the date of the
notice of termination, (iii) amounts payable under the LTIP in
accordance with the terms thereof, in each case less any other
benefits payable to the Executive under any disability plan
provided for hereunder or otherwise furnished to the Executive by
the Company and (iv) Annual Bonus for the year prior to the
year in which the Executive is terminated if at the time of
termination the Executive has earned an Annual Bonus payment for
such prior year and has not yet been paid such Annual Bonus. The
Executive shall have no further rights to any compensation
(including any Base Salary or Annual Bonus) or any other benefits
under this Agreement except to the extent already earned and vested
as of the day immediately prior to his termination by reason of
Disability, or as earned, vested, or accrued by virtue of his
Disability.
4.3
Cause. The Company may at any time by written notice to the
Executive terminate the Term for “Cause” (as defined
below) and, upon such termination, this Agreement shall terminate
and the Executive shall be entitled to receive
no further
amounts or benefits hereunder, except for any Base Salary earned
but not paid prior to such termination. For the purposes of this
Agreement, “ Cause ” means: (i) continued
neglect by the Executive of the Executive’s duties hereunder,
(ii) continued incompetence or unsatisfactory attendance,
(iii) conviction of any felony, (iv) violation of the
rules, regulations, procedures or instructions relating to the
conduct of employees, directors, officers and/or consultants of the
Company, (v) willful misconduct by the Executive in connection
with the performance of any material portion of the
Executive’s duties hereunder, (vi) breach of fiduciary
obligation owed to the Company or commission of any act of fraud,
embezzlement, disloyalty or defalcation, or usurpation of a Company
opportunity, (vii) breach of any provision of this Agreement,
including any non-competition, non-solicitation and/or
confidentiality provisions hereof, (viii) any act that has a
material adverse effect upon the reputation of and/or the public
confidence in the Company, (ix) failure to comply with a
reasonable order, policy or rule that cons
|